Sherika Dare v Israel Carmet-Cachadina

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 17 July 2015
• Neutral Citation: [2015] JMCA App 27
• Docket Number: APPLICATION NO 96/2015
• Court: Court of Appeal (Jamaica)
• Date: 17 July 2015

Between

Sherika Dare

Applicant

and

Israel Carmet-Cachadina

Respondent

[2015] JMCA App 27

APPLICATION NO 96/2015

JAMAICA

IN THE COURT OF APPEAL

IN CHAMBERS

Phillips JA

1 On 10 June 2015, I gave my decision that the amended notice of application filed on 27 May 2015, to stay the execution of the order of Her Honour Mrs D Gallimore-Rose dated 2 March 2015, which was varied on 11 May 2015 pending the determination of the appeal filed on 18 May 2015, was granted. I promised that my reasons would be made available shortly. This is a fulfillment of that promise.

2 The details of the order(s) of the learned judge of the Family Court which the applicant sought to be stayed are set out below.

Order dated 2 March 2015:

‘ IT IS HEREBY ORDER INTERIM EX-PARTE:

Custody to father.

Liberal access to mother within the jurisdiction of Jamaica upon her immediate return of the child [IC] to the said jurisdiction.

Substituted service is hereby ordered on mother by e-mail at S.A. DARE@G-Mail.Com and on Marjorie Dove maternal grandmother of 18 Trinidad Road, Kingston 11, St. Andrew.

Dated the 2 ^nd day of March, 2015.’

Varied order dated 11 May 2015:

‘Upon hearing the parties and taking evidence in this matter the order made on the 2 ^nd of [ sic ] day of March, 2015 is varied as follows:- Interim Custody to father. Access to mother within the jurisdiction of Jamaica every other weekends [ sic ] and half holidays until further ordered. Father is permitted to travel with the child to Jamaica. Application to set aside the order of March 2, 2015, is refused.

Dated the 11 ^th day of May, 2015.’

Background

3 The above orders were made in respect of the applicant and the respondent with regard to IC who was born in Jamaica on 25 June 2010. The applicant is the mother of IC and a Jamaican national while the respondent is the father of IC and a Spanish national, habitually resident in Jamaica.

4 The respondent had initiated custody proceedings in the Family Court for the parishes of Saint James, Hanover and Westmoreland (‘the Family Court’) after he hadstarted to experience difficulties in obtaining access to his daughter. The proceedings were presided over by Her Honour Mrs D Gallimore-Rose and out of those proceedings the applicant and the respondent arrived at a settlement agreement dated 13 November 2013. The settlement agreement was endorsed by the learned judge of the Family Court and concluded the custody proceedings before the court.

5 The relevant terms of the settlement agreement for the purposes of this application provided that:

• ‘ 1. CUSTODY.

  • a. Both parties agree to joint custody of [IC]; and

  • b. Her Mother will continue to have care and control of [IC] and [IC] lives with her Mother; [sic]

• 2. VISITATION.

  • a. [IC] will spend every other weekend in Montego Bay with her Father commencing the week following the date of this agreement;

  • b. [IC] will spend every other Christmas day with her Father commencing the year after this agreement;

  • c. [IC] will spend mid-term holidays with either parent based on the weekend on which the respective holiday falls; and

  • d. Time spent during the longer school holidays (Christmas, Easter & Summer) is to be divided equally between SHERIKA and Israel.

• 3. OVERSEAS TRAVEL.

  • a. Both Passports are to be kept by her Mother;

  • b. Israel to be given passports as requested upon reasonable notification to SHERIKA of intended travel; and

  • c. Each party must inform the other of overseas travel plans involving [IC], providing the other party with adequate details of such plans including contact information.’

6 On 10 February 2015 (about one year and three months after the settlement agreement had been signed by both parties), the respondent filed in the Family Court a petition under the Children (Guardianship and Custody) Act, with affidavit in support, for him to be granted custody of IC on the ground that the applicant had breached the settlement agreement, taken IC to Australia and that he would be better able to give his daughter a happy home in the country in which she was born. The application was heard ex parte by Her Honour Mrs D Gallimore-Rose, who had presided over the previous custody application.

7 The respondent in a further affidavit, sworn to on 2 March 2015, in support of the ex parte custody application, before the learned judge of the Family Court stated that:

‘…

4. I went to China on a business trip in October. The [applicant] had previously told me that she wanted to take [IC] to Orlando to Disney World in October 2014 for the heroes weekend. I agreed.

5. On October 17, 2014 I sent [the applicant] a message via whatapp [sic] asking her if she was still going to Orlando. Her response was that she and [IC] were going to Australia.

6. I was shocked. She told me that this was a last minute decision as her fiancée was worried about Chickungunya. She told me that it was a four (4) week trip and that they would be back in time for me to spend Christmas holiday with [IC].

7. I did not agree to [IC] going but decided to wait the four weeks for [IC] to be returned.…’

8 The respondent then stated through paragraphs 8 to 10 of the affidavit that the applicant had failed to return to Jamaica as anticipated in November 2014. However at his insistence that IC be returned to Jamaica, the applicant promised to have her back home in January and sent him the flight itinerary which had a scheduled return date of 27 January 2015. On 20 January 2015, the applicant had informed him that her paperwork with regard to her residency in Australia was taking longer than anticipated and as a result she could not say when she would return to Jamaica. Additionally, the respondent discovered that the applicant had married her fiancée, six weeks after she had left Jamaica.

9 In paragraph 11 of the affidavit, the respondent stated that although he was able to communicate with IC via Skype, he was of the view that the applicant had no intention of returning to Jamaica to live and therefore he was being deprived of his court ordered access to his daughter. He also stated at paragraphs 13 and 14 of the affidavit that he was unaware of IC's address or school information and had expressed concern that the applicant was trying to ‘cut’ him out of his daughter's life.

10 Upon perusing the relevant affidavits of the respondent and having heard the submissions of counsel for the respondent, Mrs Judith Cooper-Batchelor, an interim ex parte order dated 2 March 2015, was made by Her Honour Mrs D Gallimore-Rose as set out at paragraph [2] herein.

11 An application was thereafter filed in the Family Court by counsel for the applicant, to set aside the ex parte order of the learned judge of the Family Court, made on 2 March 2015. The matter was heard on 11 May 2015. The applicant was absent from the hearing but an affidavit, sworn to on 4 May 2015, in support of the notice of application to set aside the ex parte order, had been filed and exhibited thereto a letter dated 22 April 2015 from Dr Liz Davidson MBBS, FRACGP. The letter stated that the applicant had been advised not to undertake any extended travel, including air travel, due to having been experiencing severe morning sickness as a result of being 10 weeks pregnant and consequently was unable to attend the hearing.

12 It was stated in the applicant's affidavit that since the signing of the settlement agreement dated 13 November 2013, her circumstances had changed. She stated as follows in the respective paragraphs:

‘4. …I became engaged to an Australian. By virtue of my engagement, it was envisaged that I would spend the majority of my time in Australia and therefore it was necessary for [IC] to acquire residency in Australia. In my capacity as the parent with whom she resides, it was only natural that [IC] would reside in Australia as well. In light of this development, I consulted with the [respondent], informed him of my new relationship, my intention to be married in December 2014 and the necessity for [IC] to acquire permanent residency in Australia. The [respondent] agreed to support my application on [IC's] behalf for a permanent visa and, he even signed an application indicating his consent to said application. I exhibit hereto a copy of said application marked ‘ SD 3 ’ for identity.

5. …

6. …

7. The [respondent] has claimed that I have breached the Settlement Agreement however, I have not breached any of the terms thereof. The SettlementAgreement provides that I inform the [respondent] of overseas travel plans and I did so and gained the [respondent's] consent. The [respondent] is free to visit [IC] in Australia and I am willing to permit [IC] to visit with the respondent and spend alternate holidays with him as previously agreed. Therefore, I have fully complied with the terms of the said Settlement Agreement….

8. …

9. …

10. …I did not believe that it would be necessary to go through the Court in order to arrive at an agreement that [IC] and I move to Australia. In fact, the [respondent] consented to [IC] moving to Australia since in a Statutory Declaration signed by him in support of the application for a permanent visa, the [respondent] himself wrote“I agree on [sic] my daughter, [IC] to apply for a permanent visa for Australia”…I exhibit hereto a copy of said Statutory Declaration marked ‘ SD 4 ’ for identity.’

13 The learned judge of the Family Court on 11 May 2015, after having heard Mr Roderick Gordon, attorney-at-law for the applicant and, Mrs Judith Cooper Batchelor, attorney-at-law for the respondent, varied the order dated 2 March 2015 and refused the application to set aside the ex parte order, as stated at paragraph [2] herein.

14 The respondent thereafter communicated to the applicant that he would be travelling to Australia on 15 June 2015, to return IC to Jamaica.

15 On 18 May 2015, the applicant filed a...